Whatcom County Democratic Party Chairwoman Natalie McClendon just e-mailed this to me. According to the below e-mail, it was sent to Whatcom County Executive Pete Kremen at 12:40 p.m.

Check it out:

sent 12:40 pm, January 7, 2010
Mr. Kremen,
Below are some questions we think need answering by the Attorney General.

Sincerely,
Natalie McClendon
Chair
Whatcom Democrats

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Ward Nelson Appointment Legal Questions

1. Could Nelson legally be nominated to immediately take a vacant seat on the Council when he already held a seat on that same council? (Date of vacancy November 26, 2009; Date of nomination by Council December 8, 2009; date of Nelson’s term expiration January 11, 2010)

Charter Section 4.30 Conflict of Interest.

The County Council, Executive, Assessor, Auditor, Treasurer, Sheriff and Prosecuting Attorney shall hold no other office or employment within County government.

2. Was there a legal conflict of interest that should have prevented Nelson from voting on other applicants once he allowed his name to be entered as a nominee? By voting no on other nominees, Nelson prevented another appointment, increasing the chances that he would be appointed to this paid position.

3. If Nelson should have recused himself from voting does that reduced the number of votes required to make an appointment from 4 to 3?

WCC 2.02.030 Council vacancies - Procedures.

A. An appointment to fill a vacancy on the council shall be approved by majority vote of the council.

B. If at any time the membership of the council is reduced below that required to constitute a quorum by virtue of vacancies on the council, a majority of the remaining members may nevertheless fill the vacancies.

County Charter - Section 2.22 Organization

A majority of the Council shall constitute a quorum at all meetings. Council action shall require at least a majority of the entire Council except where two-thirds vote is required, in which case two-thirds of the entire Council shall be necessary.

WCC 2.02.040 Meetings - General rules.

E. All council and council committee meetings shall be conducted pursuant to Sturgis Standard Code of Parliamentary Procedure, latest edition, except when in conflict with the standing rules of the council.

F. A majority (four members) of the council shall be in attendance to constitute a quorum and shall be necessary for the transaction of the council’s business.

From The Standard Code of Parliamentary Procedure, 4th Edition, by Alice Sturgis:

“The calculation of a vote is based on the number of members present AND voting. Abstentions are not counted, since a member who abstains voluntarily relinquishes his or her vote, and is not counted in the results.

“A majority of the legal votes is the requirement that most commonly approves a motion or elects a candidate. When the term ‘majority’ is not defined and no other type of majority is specified, the law holds that a majority of the LEGAL VOTES CAST is required… Unless it is qualified in some way, a majority vote means a majority of the legal votes cast.”

4. Since the Council asked for a legal opinion regarding the process regarding Nelson’s participation, and was advised to continue the process without regard to numbers 1-3 above, is there any legal remedy that would allow the Executive’s appointment to be overturned and the decision returned to the Council?

If not, what is the remedy?

5. If the Executive’s appointment was overturned and returned to the Council would it be returned to the Council as constituted on December 8th, or to the Council as constituted when the legal opinion overturning the Executive’s decision occurs?

Relevant background material can be found in the following 1965 AG opinion:

Washington State Attorney General (AG 1965 No. 20) cited 42 Am Jur, Public Officers 97 (p955)

See: http://www.atg.wa.gov/opinion.aspx?section=archive&id=8348

“An officer intrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members.” (Emphasis added.)

Writing in the same opinion, the Attorney General wrote:

“The cases ground the public policy prohibition on the need for impartial official action, without suspicion of bias which may be against public interest. They say the appointing board cannot absolve itself of ulterior motives if it appoints one of its own, whether or not his vote was necessary to the appointment, since the opportunity improperly to influence the other members of the board is there. The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment.” (Emphasis added)